Soumya Ravi v. State of Kerala and others

W.P.(C).No.15624/2022 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN THURSDAY, THE 7[TH] DAY OF JULY 2022 / 16TH ASHADHA, 1944** ## **WP(C) NO.15624 OF 2022** ## **PETITIONER:** SOUMYA RAVI AGED 34 YEARS RESIDING AT MANKUDIPARAMBIL HOUSE, PERAMBALLOOR P.O, ERNAKULAM, PIN - 686673 BY ADVS. VISHNU BHUVANENDRAN B.ANUSREE RESHMA UNNIKRISHNAN ## **RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001 2 DIRECTOR OF PANCHAYATH DIRECTORATE OF PANCHAYATH, PUBLIC OFFICE BUILDING, NEAR MUSEUM, THIRUVANATHAPURAM, PIN - 695033 3 ARAKUZHA GRAMA PANCHAYAT ARAKKUZHA P.O, ERNAKULAMREPRESENTED BY ITS SECRETARY., PIN - 686672 BY ADV GOKUL DAS V.V.H. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.06.2022, THE COURT ON 07.07.2022 DELIVERED THE FOLLOWING: W.P.(C).No.15624/2022 2 ## **ANU SIVARAMAN, J.** ## **= = = = = = = = = = = = = = =** ## **W.P.(C).No.15624 of 2022** **= = = = = = = = = = = = = = = = Dated this the 7[th] day of July, 2022** ## **JUDGMENT** ## 1.This writ petition is filed with the following prayers:- “i.Issue a writ of mandamus or any other appropriate writ, direction or order directing the 3[rd] respondent to renew the contract of the petitioner till 30.06.2022 or such other date as prescribed by the Government in accordance with Exhibit P4 Government Order forthwith; ii) Issue a Writ of Certiorari or any other appropriate writ, order or direction quashing Exhibit P6; iii)Issue a writ of mandamus or any other appropriate writ, direction or order, directing the 3[rd] respondent to consider Exhibit P5 representation as expeditiously as possible and pass appropriate orders thereon in the interest of justice.“ - 2.Heard the learned counsel for the petitioner and the learned counsel appearing for respondents 2 and 3 as well as the learned Government Pleader. 3. It is submitted that the petitioner was appointed on contract basis as Technical Assistant in the 3[rd] respondent Panchayat in W.P.(C).No.15624/2022 3 implementation of the e-Governance Scheme of the Government of Kerala. It is submitted that the petitioner was appointed on 9.3.2020 on contract basis for one year and thereafter, the appointment was extended from time to time. It is stated that Government Orders had been rendered directing the extension of tenure of persons appointed under the e-Governance project and the petitioner had been granted the benefits of the same. The petitioner had submitted a request before the 3[rd] respondent seeking further extension of the contract by Ext. P5, but the same was rejected by the Panchayat by Ext.P6 resolution. It is submitted that the petitioner had approached the Deputy Director of Panchayats and by Ext.P8 proceedings, the Deputy Director had required all local self government institutions to extend the contract of existing employees. This Court in Ext.P9 judgment had considered an identical situation and had held that in case where no performance appraisal is conducted by a duly constituted committee, the service of contractual appointees under the e-Governance project cannot be terminated at the instance of the Grama Panchayats. W.P.(C).No.15624/2022 4 4.The learned counsel for the petitioner also places reliance on decisions of this Court in W.P.(C).No.17891 of 2018 and connected cases and W.P.(C).No.16105 of 2021 to contend that the orders passed by the Government and communicated by the Director and Deputy Director of Panchayat are binding on the Grama Panchayats and that the services of a contract employee, cannot be terminated without conducting a due performance appraisal by a properly constituted committee. 5.A detailed counter affidavit has been placed on record by the 3[rd] respondent stating that the petitioner is only a contractual employee and that the period of the contract had admittedly ended on 31.3.2022. It is contended that in view of the fact that Ext.P6 decision had been taken by the Panchayat not to extend the contract of service of the petitioner on a specific finding that she was unfit to hold the post, the petitioner who is a contractual employee whose term of contract had already expired has absolutely no right to contend that her term of contract should continue beyond the agreed time. W.P.(C).No.15624/2022 5 - 6.It is further contended that Exhibit P4 is only a letter and is not a Government Order and it cannot bind the Panchayat. It is further contended that Exhibit P5 representation is dated 12.4.2022 while Exhibit P6 decision was on 30.3.2022 and it was communicated to the petitioner by e.mail. It is also stated that the Panchayat convened a meeting on 4.5.2022 to consider the extension of the petitioners contract and took Exhibit R3(f) decision not to extend the contract and to report the matter to the Deputy Director of Panchayats. - 7.Learned standing counsel places reliance on the decisions reported in **Yogesh Mahjan v. Prof.R.C.Deka, Director, All India Institute of Medical Sciences** [2018 KHC 6057], **Santhosh K.V. v. Malabar Regional Co-operative Milk Producers Union Ltd.(Milma), Kannur** [2018 KHC 279], **State of Assam and others v. Padma Ram Borah** [1965 KHC 514], **Ramesh Sanka v. Union of India and others** [2019 KHC 6068] and judgment of a Division Bench of this Court in W.A.No.1570 of 2018 and connected cases dated 5.02.2020. W.P.(C).No.15624/2022 6 8.I have considered the contentions advanced. It is not in dispute that the petitioner had been engaged as Technical Assistant under the e–Governance programme of the Government. This Court in Ext.P9 judgment had specifically considered the question of termination of such a contractual employee on findings of alleged shortfall in performance. This Court had held that it is only after conduct of a performance appraisal by the duly constituted committee that an order of termination can be inflicted, especially in view of the fact that the Government had directed the continuation of the contract of all employees under the project, unless there is a shortfall in performance as found in a performance appraisal. The issue with regard to the applicability of the Government Orders also stands settled against the Panchayath in the light of the judgments relied on by the learned counsel for the petitioner. The contention of the respondents that Ext.P6 was only a decision not to re-engage the petitioner also cannot be accepted in view of the fact that all identically situated persons had been permitted to continue on contract basis till 30.6.2022, unless there was a shortfall in their performance as W.P.(C).No.15624/2022 7 assessed by the performance appraisal committee. Ext.P6 decision only records the opinion of the President of the Panchayat that there were deficiencies in the petitioner's service. However, the Committee decided to permit the petitioner to continue on daily wages for 45 days from 1.4.2022. The Secretary had stated that a Performance Appraisal Committee has to be constituted. The said decision is seen dated 30.3.2022. The petitioner continued in service on the basis of Exhibit P6. While so, Exhibit P4 communication dated 2.4.22 and later, Exhibit P8 letter of the Deputy Director dated 13.4.2022 were issued. It is also not disputed that the terms of contract of all similarly situated employees stands extended till 30.06.2022 by later Government Order. 9.A learned single Judge of this Court in the decision reported in **P.M.Ameer v. State of Kerala and others** [MANU/KE/31352018] has held that the Government has ample powers and authority to direct the extension of period of contract of employees under the e-Governance Scheme in view of Section 189 of the Panchayat Raj Act. W.P.(C).No.15624/2022 8 10.It is not in dispute that the Government Order dated 1.2.2021 directed the extension of services of contract employees under the e-Governance Scheme till 31.3.2022. Termination of the petitioner's contract of employment would, therefore, have been legally possible only on conduct of an appraisal by the duly constituted Performance Appraisal Committee and not by a resolution in the nature of Exhibit P6. Exhibit P6 is, therefore, legally invalid and is liable to be set aside. The continuance of the petitioner, therefore, would be in terms of the later orders extending the period of contract of employment. If that be so, the petitioner would be entitled to continue in service and be paid due wages for the period she had actually worked after Exhibit P6. She would also be entitled to extension of her contractual appointment on par with other similarly situated employees, subject of course, to due action on the basis of a performance appraisal conducted by a duly constituted committee. Exhibit R3(f) decision of the Panchayat, which is only consequential to Exhibit P6, also cannot stand in the way of renewal of the contract as ordered by the Government. W.P.(C).No.15624/2022 9 11.In the above factual situation, I am of the opinion that the contentions raised by the respondents that the petitioner's services stood terminated only on account of the cessation of the period of contract cannot be accepted. Ext. P6 is, therefore, set aside. There will be a direction to the respondents to re- engage the petitioner and permit her to work as Technical Assistant in the light of the Government Order directing the extension of the contract till 30.6.2022 and any further extension ordered in accordance with law. However, this will not stand in the way of the respondents constituting a proper performance appraisal committee and taking action on the basis of the findings of the said committee. The petitioner shall be paid due wages for the period she worked actually pursuant to Exhibit P6. The writ petition is ordered accordingly. **==> picture [25 x 12] intentionally omitted <==** ## **Anu Sivaraman, Judge** sj W.P.(C).No.15624/2022 10 PETITIONER EXHIBITS - Exhibit P1 - TRUE COPY OF THE GOVERNMENT ORDER NO.1772/2012/LSGD DATED 27.06.2012 - Exhibit P2 TRUE COPY OF THE DECISION OF THE 3RD RESPONDENT DATED 10.02.2021 EXTENDING THE TENURE OF THE PETITIONER TILL 31.03.2022 - Exhibit P3 TRUE COPY OF THE GOVERNMENT ORDER NO.265/2021/LSGD DATED 01.02.2021 - Exhibit P4 TRUE COPY OF ORDER NO. LSGD-B70/2022LSGD-PART(1) DATED 02.04.2022 - Exhibit P5 TRUE COPY OF THE REPRESENTATION DATED 12.04.2022 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDNET. - Exhibit P6 TRUE COPY OF THE DECISION OF THE 3RD RESPONDENT DATED 30.03.2022 - Exhibit P7 TRUE COPY OF THE REPRESENTATION DATED 12.04.2022 SUBMITTED BY THE PETITIONER BEFORE THE DEPUTY DIRECTOR OF PANCHAYAT, ERNAKULAM . - Exhibit P8 TRUE COPY OF THE LETTER DATED - 13.04.20220 ISSUED BY THE DEPUTY DIRECTOR OF PANCHAYAT, ERNAKULAM, - Exhibit P9 THE TRUE COPY OF THE JUDGMENT DATED 06.08.2021 IN W.P (C) NO 10857/2021 - RESPONDENT EXHIBITS - Exhibit R3(b) - True copy of the Government Order bearing G.O.(Rt) No. 571/2018/LSGD dated 27.02.2018 issued by the 1st respondent. 11 ## W.P.(C).No.15624/2022 Exhibit R3(d) True copy of the Government Order bearing G.O.(Rt) No. 722/2020/LSGD dated 31.03.2020 issued by the 1st respondent. Exhibit R3(e) True copy of the representation dated 21.03.2022 submitted by the petitioner before the Secretary, Arakuzha Grama Panchayat. Exhibit R3(a) True copy of the Government Order bearing G.O.(Rt) No. 1108/2016/LSGD dated 03.03.2016 issued by the 1st respondent. Exhibit R3(c) True copy of the Government Order bearing G.O.(Rt) No. 445/2019/LSGD dated 27.02.2019 issued by the 1st respondent. Exhibit R3(f) True copy of the resolution/decision bearing no. 10/1 dated 04.05.2022 of the 3rd respondent Grama Panchayat. True copy PS to Judge